Saturday, November 01, 2014

NY Incestuous Marriage OK: Unanimous Appeals Court

Marriage of opposite-sex close relatives had been illegal in New York for over a hundred years until this week when the New York Court of Appeals overruled a 2007 decision by U.S. immigration officials that voided the 2000 marriage between Vu Truong, then a 24-year-old male U.S. citizen of Rochester, and Huyen Nguyen, then 19, a Vietnamese citizen and Truong's half-niece.

The U.S. Justice Department claimed an 1893 state law that bars marriages between "a brother and sister of either the whole or the half blood," as well as "uncles and nieces or aunts and nephews," applied to Nguyen and Truong.

In a 6-0 decision siding with Nguyen, Judge Robert Smith wrote, "First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one."

The decision by the court in Albany, which allows Nguyen to remain in the United States, went against a 1921 ruling in which the court said a man's marriage to his half-brother's daughter was void.

The case is Huyen Nguyen v. Eric Holder, New York State Court of Appeals, No. 146.

There are now fewer restrictions on marriage in New York, though the change is probably not one you were expecting.

Judge Robert Smith wrote that while state law prohibits primarily parent-child and brother-sister marriages — "grounded in the almost universal horror with which such marriages are viewed" — there is no comparably strong objection to uncle-niece marriages. Smith wrote that the domestic relations law prohibiting some whole- and half-blood marriages "has not been viewed as expressing strong condemnation of uncle-niece and aunt-nephew relationships."

Judge Victoria Graffeo wrote in her concurring opinion that the court didn't receive any scientific evidence that would allow it to draw a conclusion about the genetic ramifications of such half-blood marriages.

Albany Law professor Vincent Bonventre, one of the state's top court-watchers, said the decision would set precedent. "The court made it clear that its construction of the statute applies to criminal cases or civil cases: It's universally applicable," Bonventre said. "From now on, unless the Legislature changes the rule, a half-uncle is permitted to marry a half-niece."

Family law expert Michael Stutman of the firm Mishcon de Reya, who is not involved in the case, said the ruling is in synch with today’s modern families.

“As people are more mobile and living longer marriages are ending and people remarry and you get blended families with step children and half children,” Stutman reasoned.

“There are plenty of other societies that allow so-called intermarriage without worrying about genetic defects. And frankly we have a long history of cousins marrying each other, take FDR and Eleanor Roosevelt,” he said.

. . . Since the passage of the 1965 Immigration Act, the U.S. government has given preferential treatment to relatives of American citizens.

But when the Department of Homeland Security learned that the two were related, officials initiated deportation hearings instead. Judge Philip Montante Jr. ruled that their marriage was invalid due to incest, a decision upheld by the Board of Immigration Appeals last year.

. . . "The decision in this case turned on a technicality,” Dr. Jennifer Roback Morse, founder of The Ruth Institute, a think tank dedicated to preserving marriage, told LifeSiteNews. “The woman didn't literally marry her uncle. She married her half-uncle,” her mother's half-brother. . . . “All the legal arguments and pieces are in place to remove further prohibitions on incestuous marriages. It is only a matter of time.”